Social media websites such as Twitter, Facebook, and Tumblr provide opportunities for media companies and their employees to engage and communicate with their audiences and to gather news. Many media and news companies have active social media presences, as do many journalists, who may use these sites for professional or personal purposes or both. Even if an employer wanted to monitor or pre-screen all of its employees' online activities, it would be near-impossible, given the profusion of social networking platforms. For that reason, many news organizations have added social media policies and guidelines to their existing employee handbooks in recent years.1
While any company may face legal and reputational risks from employees' behavior on social media websites, there are particular perils for news organizations, whose credibility depends on their reputation for impartiality. Journalists' behavior on the Internet, including behavior they intended to limit to their private circles of online friends, can have a negative impact on their employers, leading to embarrassment and, in some cases, litigation. For instance, even a casual status update or tweet could give rise to a defamation lawsuit.
Given the potential risks, media companies are increasingly seeking guidance on implementation of social media guidelines. Instead of creating generic guidelines, news organizations should consider carefully what risks worry them most and how best to guard against them. For some organizations, it may be enough to remind employees that the same principles that govern their offline behavior also apply online. Others may prefer a more detailed approach, clarifying the company's expectations through specific rules for social media activities. The right social media guidelines for your organization will depend on your organization's culture, values, traditions, and style.
This article attempts to glean a set of best practices and practical tips for drafting guidelines, based on a review of publicly-available social media policies and our firm's experience with assisting clients in drafting such guidelines.
Why Have a Social Media Policy?
Social networking has grown so fast in the last few years that it is virtually impossible to find (or write) an article about the phenomenon that does not use some form of the word "explode." Data gathered by Edison Research in January and February 2012 suggest how ubiquitous social media have become:
Few things become dated more quickly than a list of popular websites, but as of August 2012, some of the best-known social media websites include:
- Facebook, which allows users to create and communicate with a network of friends and to "like" the pages of companies, brands, and individuals;
- Twitter, on which users can creates posts of 140 characters or less (known as "tweets"), and can "follow" favorite posters, respond to the tweets of others, and post photographs;
- Google+, a service not unlike Facebook and designed for communicating with networks of friends ;
- Tumblr, a microblogging site that allows users to share creative written and/or visual content easily on short-form blogs called tumblelogs;
- LinkedIn, designed primarily for professional networking;
- Pinterest, a site that allows users to post collections of images organized by theme;
- Foursquare, a site that allows users to "check in" by announcing their location at a particular venue.
Media companies and their employees are a part of this trend. Some news organizations have hired full-time social media editors.3 There are many good reasons for journalists and their employers to use social media: to provide their news content in real time; to drive traffic to their websites and their publications and broadcasts; to engage in two-way communications with their audiences and find out what issues are important to them; to provide behind-the-scenes detail that might not have made it into a finished article; to gather information (from individuals, groups, or crowdsourcing); and to find experts and other sources. According to the Pew Research Centers, 9% of the average news organization's traffic comes from social media and 9% of online consumers of news in the U.S. "very often" get their news via Facebook or Twitter; those numbers have risen since 2010 and the Pew Research Centers expect that they will continue to rise.4
But there is a potential downside to the faster-paced, less-vetted world of social media. For instance, in 2011 in Britain, a confidential source accidentally revealed himself with a Twitter post (presumably meant to be private) reading "From someone else fine, but I do not want my fingerprints on that story."5 Imagine the fallout for the publication if it had been the journalist, rather than the source himself, who outed the source. News organizations may also be embarrassed by reporters making private statements that inadvertently go public in which they mock, or praise, individuals and companies whom they cover, thus calling into question their objectivity. Reporting information tweeted by others, without checking facts, can also lead to embarrassment, such as reporters erroneously tweeting that famous individuals have died.
More than embarrassment is at stake. A plaintiff who sues a journalist for defamation, copyright infringement, or other torts allegedly committed via social media may decide to sue the deeper-pocketed employer as well, on a theory of respondeat superior. Even if the allegedly tortious material appears on the employee's personal social networking page, a plaintiff could try to hold the employer responsible.
There may also be conflicts between the employers' and employees' goals for social networking. Journalists may use social media (and their visibility as employees of a news organization) to build a brand for themselves, separate and apart from their employer's identity. When they leave the organization, they may take their brand – and their valuable fans and followers – with them to another publication. For example, Phonedog, an online source for news about mobile phones, is currently suing a former employee who left the organization, changed his online name from "@Phonedog_Noah" to "@noahkravitz," and took his 17,000 Twitter followers with him.6 News organizations need to decide how much control they want to exercise over their employees' branding activities.
We believe that it is prudent for news organizations to have policies regarding social media. While even the most thoughtfully crafted social media policy cannot remove all risk, a policy can start a conversation about responsible use of social media and can remind all employees to use common sense and good judgment. Whether to reduce policies to writing is an individual decision; some organizations may prefer not to have written policies, fearing that a failure to follow those policies may be used as evidence of negligence in litigation. Nonetheless, many news organizations have issued social media policies in writing.
What Should the Policy Look Like?
Rules Versus Standards
Some news organizations have very short social media policies, the gist of which is to remind journalists to follow existing professional and ethical standards and to exercise good judgment. Other media companies have lengthy, detailed policies containing specific rules on what employees should and should not do.
There is no one-size-fits-all answer to whether your organization's policy should be short or long. A shorter, more general standard-based approach can make practical sense; it will be easy to draft and will not need revision every time a new form of social networking comes along. If you are confident that your staff can apply your existing ethical standards to the online world, you may side with editor John Robinson of the Greensboro, North Carolina News & Record, who has been quoted as saying, "We have a code of ethics and professionalism that covers our behavior, period. That said I've told my staff that my social media policy is this: Don't be stupid. It seems to work."7 Another advantage of a standard-based policy is that it may be too vague to be used against as evidence of an organization's negligence; it would be difficult to prove in court that someone violated the "don't be stupid" standard.
On the other hand, in a new format where the lines between personal and professional behavior may become confusingly blurred, even experienced professionals can make mistakes, and the applicability of existing rules may not be obvious. A rule-based policy gives employees a clearer sense of what behavior is expected of them, and alerts them to risks they might not have considered. Such a policy will take more time to draft and will need to be monitored for obsolescence and rewritten when necessary – but the potential risk-lowering effect of more explicit rules may justify the extra investment of time.
No matter what form your social media policy takes, you should reserve the right to modify your policy as social media changes.
Certain basic themes recur across many media organizations' social media policies.
Post With Caution
Many organizations remind staffers that online privacy settings are fallible, and therefore they should assume that anything they post via social media will be publicly accessible. Some also remind staffers that anything posted may be permanently available even if the poster tries to delete it. They may also remind users that even if they post privately, not in their capacity as a journalist, readers may assume that they speak on the employer's behalf.
Do Not Violate Anyone's Rights
The casual, chatty, real-time atmosphere of social networking sites may lull people into making statements online that they would never make in a newspaper. These statements may be merely embarrassing, or they may be libelous. Even though employees of news organizations surely know that they should not defame people, some news organizations consider it useful to remind them in their guidelines that this obligation applies to social media posts. On Twitter, where the culture encourages "retweets" (also known as "RTs") of others' posts, there is a danger that a user could add additional content that would make the tweet defamatory. If a story has been legally vetted, social media posts about the story should not contain material that was left out of the article for legal reasons.8
Many news organizations' guidelines also warn against expressing messages on social media that contain racism, sexism, or other forms of bias. Even if such posts are not made on the news organization's behalf, they may have an impact on its credibility.
Employees also should be aware of the danger of violating intellectual property rights, including those of their employers. Some news organizations advise employees to link to the organization's content rather than copying it. News organizations may also risk violating others' copyrights if they use material posted to social media sites, since the person posting the material may not in fact own the copyright.
Some organizations remind journalists that they should not lower their investigative standards for material obtained by means of social media. While it may seem obvious that reporters should apply the same healthy skepticism to social media as they should to any information source, examples of failure to do so abound. In addition to false reports of celebrity deaths, major news organizations have been fooled by unfounded stories about political figures or even April Fool's jokes. There is an inevitable tension between the instantaneous culture of social media and the slower and more deliberate pace of traditional reporting.
Many of the policies we examined require journalists to identify themselves as journalists when using social media. Some require that journalists identify themselves not only as reporters, but as reporters for their specific organization. In the same vein, some media policies instruct journalists not to use a false name or anonymous identity online. This last concern is more than just an abstract fear; a Texas couple recently won a $14 million jury verdict against anonymous posters on an online message board (though the judge granted defendants' motion to overturn the verdict).9 Anonymous posters may also be found out and embarrassed. One media outlet specifically recommends that staffers not recruit their family or friends to promote or defend their work.
Social media opens the door to dialogue with readers and viewers – but not all dialogue is friendly. Audience members may hold passionate opinions and may express them stridently. Many policies suggest that its staffers participate in conversations but avoid arguments and angry responses.
Avoid Conflicts of Interest
Some social media policies suggest that employees post a disclaimer stating that the opinions they express are their own rather than those of employers. More commonly, policies require that journalists avoid the appearance of conflicts of interest by refraining from expressing their political opinions or advocating for particular issues or agendas on social media. Some policies compare such expressions of opinion to political yard signs and bumper stickers, which are already prohibited by their existing employee handbooks.
Reporters whose beats include reviewing products may also want to be careful to avoid the appearance that they are endorsing products that the manufacturer has provided to them for free to review. Failure to reveal the source of the products would violate the FTC's endorsement guidelines if done in a news story.10 News organizations may want to remind employees that these guidelines would apply with equal force if they post a positive comment on social media about the product while failing to disclose that they received the product free from the manufacturer.
Some news organizations include broad confidentiality provisions in their social media policies, warning against revealing information about the organization's internal operations, business practices, or personnel decisions. As discussed below, however, confidentiality provisions that sweep too broadly may run afoul of the National Labor Relations Act.
Less controversial is the suggestion that journalists avoid scooping their employer. Nonetheless, certain categories of journalists – in particular, sportswriters – appear to do so routinely. One organization has recently updated its guidelines to include rules for "live tweeting events." These rules give staffers valuable guidance on how not to scoop their employer.
Policies on Which News Organizations Differ
Policies differ on whether journalists should join or friend or follow a group that advocates a particular political viewpoint or cause. While doing so might be useful as an information-gathering tool for reporting, at least one organization's policy expressly forbids it. Another recognizes that joining a political group may compromise standards but may also be necessary to get the news. Several organizations recommend that if journalists do join such groups, they follow advocates on all sides of the issue. Some organizations suggest, or even require, a disclaimer stating that retweets, links, and following groups are not endorsements.
"Retweeting" is a regular feature of the Twitter culture.11 Twitter users share the posts of other users by reposting them with the initials "RT" in front and the Twitter ID of the original poster. (If the retweeter modifies the original post, he or she uses the initials "MT," for "modified tweet," instead of RT.)
News organizations differ on their policies towards retweets. Some organizations feel that retweets are endorsements of the original content; others state that they can be taken as an implicit endorsement. One organization suggests that the retweeter add content to make clear that he or she is not expressing an opinion or an approval of the original poster's opinion. Some organizations suggest a disclaimer on the user's Twitter profile stating that retweets are not endorsements.
Regular users of Twitter seem bemused by policies that equate retweeting with endorsement.12 But not all Twitter users who follow news organizations are savvy about Twitter culture, and a disclaimer about retweets may be helpful in reconciling a news organization's culture of impartiality with the Twitter culture of connecting to the community by circulating the thinking of other users. In any event, the differences of opinion over retweeting suggest that it is important that whoever drafts your social media policy have familiarity with social media culture and its particular pitfalls.
Some news organizations caution their reporters about accepting Facebook "friend" requests from sources. Some suggest that if you "friend" a source on one side of a debate, you should "friend" the other side as well. Others are less concerned about "friending"; Craig Whitney, the now-retired standards editor at the New York Times, was quoted before his retirement as saying, "Basically what it comes down to is we believe that being a friend on Facebook, and I speak as one who has a Facebook page, is essentially meaningless, and everybody knows that. So it's hard to imagine any real conflict of interest that could arise from your being a friend of somebody on Facebook and writing about that person."13
Reporters must guard against exposing their confidential or anonymous sources by "friending" them on social media sites. Posting to social media using a mobile device, or use of a social media site (such as FourSquare) that allows one to "check in" at a physical location may also inadvertently disclose the location of a reporter or the source he or she is visiting – although we have not found any social media policies that specifically warn against this practice.
"De-Friending" Embarrassing Acquaintances
A few news organizations recommend that their employees delete comments that could damage the news organization's reputation and distance themselves from the people who left those comments. Other news organizations leave this decision to the good judgment of their employees.
Ownership of Social Media Accounts
Many organizations do not address the question of ownership. If a reporter tweets on her news organization's behalf, and then leaves the organization, does she own the social media account and all of its followers or fans? Failing to have a policy on account ownership in place can lead to misunderstandings and even litigation.14 News organizations may want to consider setting up institutional accounts to retain their followers and fans even as individual staffers move on.
Policies to Avoid
Policies That Violate Labor Laws
Some social media policies, in an effort to avoid embarrassment to the news organization or its parent company, tell employees to avoid discussing internal company policies, company decisions or business activities, or personnel matters. Depending on how they are worded, such policies may potentially violate the National Labor Relations Act ("NLRA") because they may affect employees' right to engage in protected concerted workplace activities.15
Employees, whether unionized or not, have the right under Section 7 of the NLRA "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."16 This includes the right to discuss or criticize an employer's policies or its treatment of employees as long as those discussions or criticisms are not maliciously false.17
Recently, the National Labor Relations Board ("NLRB") has taken a series of actions against employers whose social media policies violate employees' Section 7 rights.18 For instance, an employee of American Medical Response, an ambulance service in Connecticut, posted on Facebook that her supervisor was a "scumbag" and was subsequently fired for violating a company policy prohibiting "making disparaging remarks about the company or depicting it online without permission."19 The NLRB filed a complaint against the employee, alleging that the policy was overbroad and the firing unfair; it found the Facebook posting to be concerted activity because it concerned work-related activities; the employee's co-workers responded by posting supportive comments; and the employee then posted further negative comments about the supervisor.20 The parties settled and AMR agreed to change its policy.21 Similarly, the NLRB acted against a car dealership that fired an employee for posting comments on Facebook about his disapproval of a hot dog stand that had been set up at a company event.22 Again, the Facebook posting was related to working condition and triggered a response from co-workers; thus it was protected concerted activity.23
On the other hand, the NLRB declined to take action against the Arizona Daily Star when it fired an employee who made a series of Twitter posts disparaging his colleagues, a local television station, and the city of Tucson, and then refused to stop doing so when warned.24 The NRLB found that the employee was disciplined for conduct that did not relate to the terms and conditions of his employment, and that the employee did not seek to engage other employees in concerted action.25 Nor did the employer seek to impose an overbroad rule on other employees; rather, it appropriately warned this individual employee that his particular conduct was inappropriate.26
These cases suggest that may be acceptable to ask employees to avoid disparaging others, embarrassing the company, or revealing confidential information about third parties, as long as you do not to frame the rule in such a way that it would chill employees them from exercising their right to discuss working conditions with their fellow employees, engage in protected concerted activity with them, or criticize their working conditions or their supervisors. As the NLRB has explained:
Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful. In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.27
Therefore, when you draft or revise your policy, we advise that you make crystal clear that you do not prohibit, and will not retaliate against employees for engaging in, employment-related concerted activity.
Policies That Overreach
Organizations that try to assume too much control over their employees' non-work related behavior run the risk of igniting a firestorm within the organization. Worse yet, employees might simply ignore a policy altogether if it attempts to restrict the most basic social networking activities. For these reasons, it makes sense to poll key social media users within the organization and identify ways in which the employer can achieve its risk-reduction goals while still allowing employees to use social media in productive and practical ways.
An overreaching policy can also lead to embarrassment outside the organization. Your organization's social media policy is likely to be posted online even if you do not choose to post it on your website. If your policy makes your organization sound out-of-touch with social media trends, you could be mocked; if your policy is inconsistent with the public positions your organization takes on issues such as newsgathering or fair use, your organization may be exposed to charges of hypocrisy.
Social media has become an important part of news gathering and delivery. An ideal social media policy will be tailored to your organization. It will be drafted by people who are sensitive to your organization's concerns and familiar with social media culture. It will provide protection for your organization's reputation while not providing unnecessary (or unlawful) restrictions on your staff. And it will be flexible enough that its basic principles will still apply even as social networking inevitably changes form.
1 Many such policies are available online. Links to many companies' social media policies (including both media and non-media entities) are available at http://socialmediagovernance.com/policies.php. The American Society of News Editors has collected a number of media companies' social media policies in their publication 10 Best Practices for Social Media (May 2011), available at http://asne.org/Files/pdf/10_Best_Practices_for_Social_Media.pdf.
2 Edison Research / Arbitron, The Social Habit, (June 2012), available at http://www.edisonresearch.com/wp-content/uploads/2012/06/The-Social-Habit-2012-by-Edison-Research.pdf.
3 See Stephanie Gleason, Harnessing Social Media, Am. Journalism Rev., Mar. 2010, available at http://www.ajr.org/article.asp?id=4860.
4 Pew Research Center, The State of the News Media 2012 (March 19, 2012), available at http://stateofthemedia.org/.
5 Tim Shipman, 'From Someone Else Fine, but I Do Not Want My Fingerprints on That Story': Embarrassment for Chris Huhne After Accidental Tweet, Daily Mail (UK), Oct. 8, 2011, available at http://www.dailymail.co.uk/news/article-2046710/Chris-Huhne-Twitter-embarrassment-accidental-fingerprints-tweet.html.
6 Amy Gahran, Lawsuit to Watch: Who Owns Journalists' Social Media Accounts?, Knight Digital Media Center (December 27, 2011, 4:55 PM), at http://www.knightdigitalmediacenter.org/blogs/slaffert/2012/12/lawsuit-watch-who-owns-journalists-social-media-accounts
7 10 Best Practices for Social Media, supra n. 1, at 46.
8 Jeffrey P. Hermes, Promoting Vetted News Content on Social Media (or, How Not to Give Your Lawyer a Heart Attack), Citizen Media Law Project (Jan. 5, 2012), at http://www.citmedialaw.org/blog/2012/promoting-vetted-news-content-social-media-or-how-not-give-your-lawyer-heart-attack.
9 Mike Mintz, Largest Jury Verdict in Online Defamation Case Overturned, Martindale.com Blog (July 11, 2012), at http://blog.martindale.com/largest-jury-verdict-in-online-defamation-case-overturned.
10 16 CFR Part 255.
11 Interestingly, a recent study by the Pew Center suggests that most mainstream news outlets are much less likely than other Twitter users to retweet. Pew Research Center, How Mainstream Media Outlets Use Twitter (Nov. 14, 2011), available at http://www.journalism.org/analysis_report/little_use_retween_function?src=prc-section.
12 Steve Buttry, Retweets Aren't Endorsements; Editors Shouldn't Inhibit Them, The Buttry Diary (Dec. 6, 2011), at http://stevebuttry.wordpress.com/2011/12/06/retweets-arent-endorsements-editors-shouldnt-fear-them/; Caitlin Johnston, The Naked Retweet Dilemma, Am. Journalism Rev., Dec. 2011/Jan/2012, available at http://ajr.org/Article.asp?id=5209.
13 Steven Mendoza, To Friend or Not to Friend?, Am. Journalism Review, Oct./Nov. 2008, available at http://www.ajr.org/article.asp?id=4628.
14 See supra note 6 and accompanying text.
15 Peter Finch, Social Media Rules Under Microscope, Puget Sound Business Journal, June 22, 2012, available at http://www.dwt.com/files/Uploads/Documents/Advisories/PSBJ_Finch_June2012.pdf.
16 29 U.S.C. § 157.
17 Nat'l Labor Relations Board, Operations-Management Memo OM 12-59, May 30, 2012, at 6-7.
18 Id.; see also Nat'l Labor Relations Board, Operations-Management Memo OM 12-31, Jan. 24, 2012; Nat'l Labor Relations Board, Operations-Management Memo OM 11-74, Aug. 18, 2011.
19 Am. Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (N.L.R.B. Div. of Advice Oct. 27, 2010).
20 Nat'l Labor Relations Board, News Release, Nov. 2, 2010, available at http://www.bhfs.com/portalresource/nlrb.pdf.
21 Jessica Martinez, NLRB v. American Medical Response: A Rare Case of Protected Employee Speech on Facebook, Berkeley Tech. L.J. Bolt (March 7, 2011), http://btlj.org/?p=1111.
22 Karl Knauz Motors, 2011 WL 4499437 (N.L.R.B. Div. of Judges Sept. 28, 2011).
24 National Labor Relations Board Advice Memorandum. Apr. 21, 2011, Lee Enterprises, Inc., d/b/a Arizona Daily Star, Case No. 28-CA-23267, available at http://www.hldataprotection.com/uploads/file/NLRB%20Advice%20Memorandum,%20Arizona%20Daily%20Star%20(4_21_11).pdf.
25 Id. at 6-8.
26 Id. at 8.
27 Nat'l Labor Relations Board, Operations-Management Memo OM 12-59, supra note17, at 3.